A federal act making it
a crime to falsely claim that one holds the Congressional Medal of Honor
violates the First Amendment, the attorney for a former member of the Three
Valleys Municipal Water District board told a Ninth U.S. Circuit Court of
Appeals panel yesterday in Pasadena.

“In some cases, false
speech is protected speech,” Deputy Federal Public Defender Jonathan D. Libby
told the judges. “This is one of those cases.”

Xavier Alvarez was
elected to the water board in 2006 by south Pomona voters. Asked to introduce himself at his first
meeting, he explained that he had served for 29 years in the Marine Corps and
held several decorations, including a Medal of Honor for pulling the flag from
the embassy in Iran during the hostage
crisis in the 1970s.

In fact, he had never
served in the military. He was convicted of violating the Stolen Valor Act and
was placed on probation, the conditions of which included service at a
veterans’ home.

Alvarez remained a
member of the board, however, until last month, when he was sentenced by Los
Angeles Superior Court Judge Michael Camacho to five years in state prison formisappropriating district funds by qualifying his ex-wife for insurance
benefits.

Both Libby and Assistant
U.S. Attorney Craig Missakian were questioned pointedly by Judges Jay Bybee and
Milan D. Smith Jr. as to how far the government can go in penalizing false
statements.

It would be
“astonishing” for a court to find as a general proposition that lies enjoy free
speech protection, Bybee said, and Libby did not disagree. But the defense
attorney insisted that the Stolen Valor Act, which contains no requirement that
the lie be made with intent to defraud or deceive, or be made under oath,
crosses the line.

Under questioning by
Smith, Libby acknowledged that the government “has a legitimate interest to
protect here.” But that interest does not require a criminal statute, Libby
said, because Congress could have imposed civil liability in favor of anyone
injured by a violation.

The reputations of
actual Medal of Honor recipients—94 of whom are currently living—are already
protected because anyone can go to a government website containing their names
and personal histories, Libby added.

Bybee acknowledged that
lying in the political process is common, and that a degree of free speech
protection likely exists for falsehoods told in support of, or in opposition
to, political objectives. But he questioned whether that same principle applies
to the specific falsehoods banned by the Stolen Valor Act.

“What interest is this
speech spurring?” he asked.

Libby suggested that
Alvarez’s speech was in part political, since he was an elected official
seeking to inflate his reputation.

Smith, the brother of
former U.S. Sen. Gordon Smith, an Oregon Republican, said the statute might be
overbroad. But he said he was troubled by the “open-ended concept” of
constitutional protection for false speech.

He contrasted Alvarez’s
boasts with Daniel Ellsberg’s leaking of the Pentagon Papers, an event that may
have sped up American disengagement from Vietnam.

“What public good is
your client doing her that warrants this level of constitutional protection?”
he asked.

But Smith also asked
Missakian whether Congress can ban lies that lack identifiable negative
consequences. The prosecutor acknowledged that the government cannot ban lying
“about a person’s age or about whether there is a Santa Claus,” but said
Congress could protect against “a more generalized harm.”

The law is not so broad,
he said, as to allow prosecution of someone who makes a hyperbolic claim that
is not intended to be believed, or who participates in a theatrical
performance.

Smith also asked
Missakian about the claim that Alvarez’s speech was political, and that
prosecuting him for it was akin to a revival of the Sedition Act used by 18th
Century Federalists to punish criticism of their performance in office.

Missakian said that
while participants in public discourse are entitled to “breathing space,” that
concept “doesn’t extend to intentional lies.”

In a brief rebuttal,
Libby returned to the argument that Alvarez’s speech was political, which led
to nervous laughter in the room after Smith attempted a play on words following
mention of Alvarez’s service on the “water board.”

“We don’t want to talk
about the waterboard,” he commented, bringing a half-smile to the face of
Bybee, sitting immediately to his right. Bybee has been sharply criticized for
his authorship, while serving as assistant attorney general in the administration
of George W. Bush, of a memo suggesting that detained enemy combatants could be
subjected to “enhanced interrogation techniques.”

The third member of the
panel, Senior Judge Thomas G. Nelson, participated via videoconference but did
not ask any questions.